Abstract
In Solid Waste Association of Northern Cook County v. U. S. Army Corps of Engineers (SWANCC), the Supreme Court considered whether federal regulatory authority reaches isolated wetlands and ponds due to the potential presence of migratory birds. In rejecting such an expansive view of federal authority, the Court's majority underlined its devotion to federalism, despite the dissent's complaint that the decision would frustrate environmental protection. This paper argues that SWANNC is not an obstacle to environmental protection. There is little reason to believe that interstate competition amongst states will produce a race to the bottom in environmental regulation today, if it ever did. The presence of interstate externalities can, in certain circumstances, justify federal environmental regulation. However, the presence of such externalities is often overstated, and the costs of addressing such externalities through federal regulation may well be greater than maintaining state primacy. Insofar as wetl...
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